Made redundant, then asked to stay

tallrider

If a position is no longer needed to be made redundant, then yes redundancy can be withdrawn up until the last day. Whether or not the other person agrees or not. They are still free to leave or they can continue doing their original job. This is an unfair aspect of reduandancy and has often come about when someone has agreed redundancy but then someone else within the business leaves anyway and so that person is not needed to be made redundant.

Again this is not correct, but I can see we are not going to get anywhere here so I'll leave it at that.

getmore4less

tallrider wrote: »

Both are incorrect, Getmore4less you seem to agree with me yet state I am wrong!?!?

Once you have given someone notice, i.e. after consultation you CANNOT retract the notice - therefore you are going to be dismissed by reason of redundancy! Of course the company can decide not to pay you it, but if you take them to tribunal you will win, as you are entitled to the redundancy!

The only way they can get away with not paying redundancy is to mutually agree to retract.

(confirmed by myself)

In the case I was involved with both ACAS and legal advice have supported that the withdrawal of redundancy element can be done and without a job to go you are likely to lose any claim unless you have some other very good reasons to refuse the job.

The relevent sections of the employment acts seem to be
138,139,141,146. (unless these have been ammended)
http://www.opsi.gov.uk/acts/acts1996/ukpga_19960018_en_14#pt11-ch2-pb1-l1g138

specificaly 141 applies to the effective withdrawal of the redundancy by offering you your old job back.

tallrider

BUT THEY ARE CUTTING THE HOURS!!!!! Therefore any job offer is not suitable! as it is not the same job, not the same pay, not the same hours. They have no chance of arguing that it is a suitable alternative!!

alanobrien

She should keep all the redundancy pay for the stress caused in having to go through the process imho. As someone said earlier, keep it all, take a holiday and if they really want her back the phone will ring.

getmore4less

tallrider wrote: »

BUT THEY ARE CUTTING THE HOURS!!!!! Therefore any job offer is not suitable! as it is not the same job, not the same pay, not the same hours. They have no chance of arguing that it is a suitable alternative!!

Thats fine that's not suitable no ene ever disputed that, what was said was they could withdraw the redundancy.

We are discussing the withdrawal of the redundancy and getting the old job back, same terms which I think they can do.

You seem to disagree with this.

I have tried to back up my position with the link to the bits of the employment act I think are relevent as well as well as previously poining out that ACAS and legal advice also said this was the case.

If you still think this is wrong please try back it up, I would much prefer for it to be case that once notice is given it sticks.

tallrider

I'm not sure what you are doing, but I'm answering the question, in connection with the corresponding facts, in this case, there is no way they can withdraw the redundancy pay. Your saying they can, but they can't. As they are not offering a suitable job.

However lets change the rules just for you so you can be right too. If the job was exactly the same, then they could offer it as a suitable alternative, and withdraw the redundancy pay. The caveat being that it must be a "suitable alternative" i.e. same terms conditions, status, pay, place of work, not only that, but it must also be an unreasonable refusal - unreasonableness as I'm sure you're aware is very difficult to pin down. Not only because it is subjective, but also because it has never really been tested in court.

The reason why its never been tested in tribunal, may be down to the fact that all cases settle before they get there, because no company wants to take the risk of paying for legal cost upto tribunal and loosing, and its easier to pay redundancy.

With a good legal person, you coudl easily argue that a reasonable refusal coudl be down to little things such as - emotions built up over the consultation process, plans and purchases already partaken with the view to a new job, and as you've stated everytime finding a new job. Its so subjective and it is dependant on the tribunal on the day.

BUT if the job was the same, if the person had no reasons to refuse, then yes they would not have to pay redundancy, but the notice still stands and the person will leave. I can assure you this very very very rarely happens, as no compnay is stupid enough to go throguh redundancy procedure when they have the same job available, or there is a possibility of a new job being found, you do the work beforehand.

As it happens, none of the above is apparant in this case here, which is why, they cannot withdraw redundancy on the current facts we have. I prefer to work with facts rather than speculation, but thats your choice.

So

what was said was they could withdraw the redundancy.

Which they cannot in this case!!

brightonman123

what i meant was, if notice govenn served, then when they come to gice you the payoff cheque and try to change your mind.. taske the money first- !

Orville

OP ignore the tit for tat whose right wrong etc...

The main question i would be asking is why would they ask your mum to had back half the redundancy and start again as a new employee..?. This could be a very bad thing for you mum. For instance a few weeks down the line they could then make her redundant again, this time without any entitlement and she would have lost the money. Any job offer she has had would be in my opinion should be accepted by her on the condition that she keeps her full redundancy payment, then starts fresh on a new contract, just as if she was a new employee.

silvercar

Happened to a friend and they wanted her to start again as a new employee. She was advised that if she had a break of less than 4 weeks she had continuety of service. If the break was over a 4 weeks then she could be on a new contract.

zzzLazyDaisy

The break only needs to be one full week including two saturdays to break continuity of service. The reason for this is that S 212 Employment Rights Act states that any week that is governed by a contract of employment in whole or in part, counts for the purposes of continuity.

So, for example, if an employee's last day is Monday of one week, and s/he starts a new job with the same employer on Friday of the next week, both weeks count and service has not been broken.

But where there has been at least one whole week's break that is not covered by a contract of employment, then service is broken, for employment protection purposes.